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COURT SLUMS BREAKS ON IMPORTANTION OF GMO FOODS.

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Trade and Investments Cabinet Secretary Moses Kuria.

BY SAM ALFAN.

The High Court has issued temporary orders prohibiting the government from importing or distributing Genetically Modified Organisms (GMOs) foods or crops in the country.

Justice Mugure Thande issued the order against CS Agriculture or any state agents from acting on the Cabinet dispatch which lifted the ban on GMO. 

“The petition and application be served upon all parties by close of business today 28th November 2022,” the judge ruled.

The case will be mentioned on December 15, 2022 for directions. 

The Kenyan Peasants League filed a petition against the government against the importation of GMO maize into the country.

Trade CS Moses Kuria has indicated that the maize will be imported to be distributed to famine-stricken Kenyans.

KPL argued that GMO food poses deadly health hazard to Kenyans, particularly the poor and those of low income areas.

In his affidavit, KPL leader Cidi Otieno noted the recent statements by Kuria where he stated that “there was nothing wrong with adding GMOs to the list of the things that can kill Kenyans.” 

Otieno told the court that such a statement from the CS in charge of the Kenya Bureau of Standards meant that the GMOs were indeed dangerous for human consumption and that the actions of the government threatens the health and human life contrary to the provisions of the Constitution of Kenya. 

The Cabinet had announced the resumption of GMO after a 10-year suspension. 

The decision was made after a Cabinet meeting chaired by President William Ruto in a bid to mitigate the ongoing drought.

“If indeed the government needed to mitigate hunger, it was free to import safe maize from neighbouring Tanzania or other countries, rather than import food that would lead to long term diseases of the consumers,” Otienno added.

ACTIVIST SEEKS TO BLOCK NAMES OF NOMINEES TO EALA FOR LACK OF REGIONAL BALANCE.

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President William Ruto with Mombasa politician Hassan Omari and opposition leader Raila Odinga with Suleiman Shabal .

BY SAM ALFAN.

The list of nominees elected to the East Africa Legislative Assembly (EALA) is facing a legal hurdle after an activist moved to court over the election of two Mombasa politicians to the regional court.

The activist moved wants the High Court to temporarily block the clerks of National Assembly and the senate from forwarding the list of EALA representatives as voted by Parliament on November 17 as obtained on the gazette notice to the speaker of EALA.

Kau Quentin Mengo says the list should be stopped pending the determination of the case.

“The election having been conducted and concluded, the Speaker of the National Assembly and the Senate are enjoined to forward the elected representatives to the assembly and unless this court certify the instant application agent and issues conservatory orders against the two houses from forwarding the flawed list of representatives elected, the duo shall proceed to forward the same and subsequent swearing in conducted this rendering the petition filed here with nugatory,” said the Mengo.

Through lawyer Danstan Omari, Mengo wants the court to restrain the clerks from forwarding the names two EALA as voted by Kenya Kwanza and Azimio la Umoja coalition members.

Kenya Kwanza members include, former nominated MP David Sankok, Hassan Omar, who lost the Mombasa gubernatorial on an UDA ticket, Rebecca Merikeju, Zipporah Kareng, Fredrick Muteti and Falhadha Iman

Azimio la moja members include veteran opposition leader Raila Odinga’s daughter Winnie Odinga, Suleiman Shabal, who also lost the Mombasa gubernatorial ticket to Abdulswamad Nassir, Timothy Bosire, Kennedy Kalonzo (son to former vice president Kalonzo Musyoka) and former Kieni MP Kanini Kega.

The petitioner says Mombasa and Nairobi counties have more than one nominee at the expense of other nominees who garnered many votes from other counties.

He says the list failed to meet the national values and principles set out under the constitution.

According to Mengo, under the East African community Treaty the assembly has a membership compressing 9 members elected by each partner state, ex-officio members consisting of the minister or assistant ministers responsible for the East African Community Affairs from each partner state, the Secretary General and the Counsel to the community.

He says the act by the two clerk returning officer replacing Charles Muteti’s name with that of Iman Falhada notwithstanding the fact that the latter had fewer votes so as to meet the one-third gender principle is sufficient testimony that the duo well understand that it is not always about the strength of the numbers and that other principles especially those under article 10 of the constitution of Kenya come into play.

Following the final list, it is clear that four regions gabbed 8 EALA slots out of the total 9 leaving 1 slot to the North Eastern Region -Garissa county and the entire regions of Western Region, Nyanza (Lake) Region and Eastern Region with none thus the clear manifestation of exclusion.

BLOW TO AUCTIONEER AS JUDGE DISMISSES APPLICATION CHALLENGING COURT’S JURISDICTION.

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Environment and Land Court Presiding Judge Oscar Angote who dismissed application challenging the court supervisory powers./PHOTO BY S.A.N.

BY SAM ALFAN.

Environment and Land Court has dismissed an application by an auctioneer challenging the powers of the court to call for a file from a magistrate.

Justice Oscar Angote said he acted within the powers granted to the court after calling the file and punishing the auctioneer for purporting to interpret orders issued by a magistrate.

Lariak Properties Limited had challenged the powers of the court to call up for the file in the case where the auctioneer Zacharia Baraza has been convicted over contempt of court.

“In the circumstances, the court finds no merit in the preliminary objections dated 16th November and 17th November 2022. The preliminary objections are dismissed with no order as to costs,” ruled judge Angote.

The judge further ruled that the court acted lawfully when it convicted Baraza for contempt of court.

Baraza has since been charged with robbery with violence over the demolition of a house in Westlands.

The ELC court punished him for purporting to execute the orders of the lower court which led to demolition of Sh 20 million couple’s house in Westlands, Nairobi.

The judge said that the dignity and authority of the court must be protected, and those who flagrantly disorbey the court orders must be punished, lest it leads to a state of anarchy.

He said it is essential for the maintance of the rule of law and order that the authority and the dignity of a court is upheld at all times.

The ELC judge further said that the court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors.

“It is the plain and unqualifies obligation of every person against or in respect of who an order is made by the court of competent jurisdiction to obey it u less and until that order is discharged,” the added.

He ruled that the uncompromising nature of the above obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or void.

Lariaki Properties limited had challenged the powers of the Environment and Land court to determine a case before it.

The company argued the the court lacks jurisdiction to supervise the lower court.

Through lawyer Duncan Okatch, the company told Justice Oscar Angote that the supervisory jurisdiction is only granted to the High Court as established under Article 165(6) of the constitution.

He added that the supervisory role cannot apply to the Environment and Land Court as the said court is established under Article 162 of the constitution.

“It is already settled that the Environment and Land Court and together with Employment and Labour Relations Court are different from the High Court and it is settled that jurisdiction is everything and the same must flow from the constitution or any other statute therefore any actions by any court of law devoid of jurisdiction is null and void,” submitted lawyer Okatch.

On his part, auctioneer Zachariah Baraza who has been found guilty of contempt of court said the Court purported to arrogate unto itself supervisory jurisdiction under Section 3 and 18(1) (b) of the Civil Procedure Act yet the said provisions do not provide for and confer jurisdiction to ELC as they are not the statutory provisions for operationalising Article 162(3) of the Constitution on conferment of jurisdiction to ELC.

But the in his ruling dismissed saying when the auctioneer was asked why he purported to execute the orders of the court without the duly signed warrants by yhr Court, and contrary to the order that barred him from interpreting the order of the court to mesn ‘eviction,’ he never protested, neither did he assert that he was not aware of the orders of the court.

Okatch submitted that the auctioneer was cited for contempt of court and convicted without the contempt proceedings being filed because the case was not about contempt in the face of court.

He added that the auctioneer was cited for contempt and convicted without being served with the court order he is alleged to have disobeyed nor served with the mandatory disclaimer and Penal Notice warning him of the penal consequences in the event of any alleged disobedience of the court order.

VOTER SEEKS TO BLOCK HOMA BAY COUNTY PUBLIC SERVICE BOARD MEMBERS WHO WERE VETTED ON A WEEKEND FROM ASSUMING OFFICE.

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Lawyer Duncan Okatch for Patrick Odemba./PHOTO BY S.A.N.

BY NT CORRESPONDENT.

A Homa Bay voter has moved to court to block members of the County Public Service Board from assuming office arguing that the recruitment process was tainted with illegalities.

Patrick Okuku Odemba wants the High Court in Kisumu to block the officials from assuming office stating that the vetting of the members of the board was conducted by the county assembly on Saturday and Sunday without public participation.

Through lawyer Duncan Okatch, Odemba wants the board barred from purporting to discharge any functions confered to them by the office or from making or receiving any benefits directly or indirectly associated with the office pending hearing and determination of the case.

“The petitioner is thus apprehensive that unless this court urgently intervenes and grants the orders sought in the instant application , the successful person interviewed on 19th and 20th days of November (weekend) will assume office as the member of the Homabay County Public Service Board and perform functions of that office through an illegality and a process aimed at defeating justice,” says Odemba.

Odemba further wants the court to temporarily stop Ruth Aloo from performing or acting as the Chief Executive Officer of Homa Bay Public Service Board.

Through lawyer Okatch, Odemba claim that on 4th day of October this year, the Homa Bay County Public Service Board interviews of shortlisted candidates to fill in positions for members of public service board and the said interviews were to be conducted on 19th and 20th of November.

However, Homabay County Public Service Board had on 28th day of September advertised vacancies for the county chief officers, directors and deputy directors in various positions and as such, the same was done in absence of a properly constituted board and in blatant disregard of the constitution.

“As at the time of the said advertisement vacancies of county chief officers, directors and deputy directors in various positions , the Public board was not even properly constituted as it lacked statutory mandatory to operate as stipulated under section of the county government (amendment) Act,2020 thus rendering the untire recruitment process a nullity ab initio ,” he adds.

According to documents, in a bid to remedy the wrong and defeat justice the board through the county assembly has gone ahead and conducted interviews for the members of the public service board so as to fill the vacancies in the board before interviews for the county Chief officers, directors and deputy directors could commence.

“It is quite shocking that the interviews were conducted on the 19th and 20th day November,2022 which days are both Saturday and Sunday and not working days and without public participation,” says Odemba.

Odemba adds that the entire process is fought with patent conflict of interest the Governor illegally appointed Ruth Oloo as the acting secretary and Chief Executive Officer of Public Service Board yet the same person is also substantive chief officer of in charge of energy.

AUCTIONEER ZACHARIAH BARAZA DENIES ROBBERY WITH VIOLENCE CHARGE OVER WESTLANDS HOUSE DEMOLITION.

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Embattled auctioneer Zachariah Baraza before Milimani Magistrate court where he was charged with robbery with violence../PHOTO BY S.A.N.

BY SAM ALFAN.

Embattled auctioneer Zachariah Wakhungu Baraza has been charged with robbery with violence.

Baraza denied the charge when he appeared before Milimani Senior Principal Magistrate Robinson Ondieki.

Baraza is accused of violently robbing Niraj Batuk Shah and Avani Niraj Shah, an offence he allegedly committed on November 4 jointly with others, on School Lane in Westlands area.

The charge sheet stated that he and others robbed the couple of their electric appliances, jewelry and assorted household goods and items worth Sh18,097,000.

The duo are also accused of willfully and unlawfully damaging a house valued Sh20 million erected on the land parcel LR. No.1870/111/46; IR No.84817 the property of Batuk Lakhamshi Lalji Shah.

Three other persons Samuel Chepkwony, John Rotich and Joel Kiplangat are facing similar charge and a warrant of arrest has been issued against them after failing to appear in court as directed.

Baraza was released on a cash bail of Sh2 million or an alternative bond of Sh5 million.

The charge sheet states that during the incident, they threatened to use actual violence on the said couple.

KRA APPEALS DECISION QUASHING SH116 MILLION VISA INTERCHANGE FEES AGAINST CBA BANK.

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Commercial Bank of Africa currently known as NCBA./PHOTO BY S.A.N.

BY SAM ALFAN.

Kenya Revenue Authority (KRA) has appealed against a ruling in favour of Commercial Bank of Africa currently known as NCBA over Sh116 million arising from card interchange fees.

In a ruling last year, the tax appeals tribunal ruled in favour of the lender saying the fees are VAT exempt.

The taxman had assessed VAT on Visa interchange fees from January 2013 to December 2017 and demanded Sh116.5 million including principal tax of Sh16 million and interest of Sh20 million.

KRA says in the appeal that the Tribunal erred in law and fact in finding that Interchange fees received by CBA are not subject to VAT under the VAT Act, without any express provisions of the VAT Act exempting the same.

“The Tribunal erred in law and facts in finding that the services provided by CBA in a credit or debt card transaction are not taxable services as provided by section 5,6(1) and 6(4) of the VAT Act ,2013,” adds the taxman.

KRA says it strongly disagrees with the findings since the VAT Act, 2013 does not expressly state that Interchange fees are exempt financial services.

They told the court that the term “taxable supply” under the VAT Act has been defined as “supply of money, other than exempt service made in Kenya by a person in the course of furtherance of a business carried on by the person including a supply made in connection with the commencement or termination of a business.

According to KRA, the services offered by CBA of authorization clearing and settlement service are not services enumerated in the exemption under the VAT Act.

The taxman adds that Tax Tribunal failed to give any justification for adding the item to the exempt section of the Act and it out rightly lacks jurisdiction to amend the VAT Act .

KRA further submitted that in a taxing Act, one has to look merely at what is clearly said and there is no equity about tax.

There is no presumption as to tax and nothing is to be implied one can only look at the language used.

OFFICERS FROM DISBANDED UNIT TO OPPOSE PLANS TO DETAIN THEM LONGER.

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Four officers from disbanded Special Service Unit (SSU) Peter Gachiku, Francis Ndonye,John Kamau and Joseph Mbugua before Kahawa law Courts.

BY SAM ALFAN.

Nine members of disbanded Special Service Unit (SSU) will oppose any application to further detain them after failing to get blood samples as directed by the court.

The court had directed that the SSU officers be presented at the national lab to give blood samples fo analysis in the presence of their personal pathologist.

The officers are apprehensive that the investigators might come up with some mischief by secretly presenting them in another lab other than the national forensic lab at the DCI headquarters in the absence of their dully appointed forensic scientist.

Through their lawyer Danstan Omari, the officers complained to the DPP that orders issued by Kahawa law court Magistrate Diana Mochache has not been adhered to.

In a letter to the Director of Public Prosecution Noordin Haji, the police officers said they will oppose any plans to detain them further.

“We shall be vehemently opposing to any application to extend the time beyond the twenty one (21) days that were granted to you on the 1st December 2022 when the matter shall be coming for mention,” says the officers lawyer.

The court had ordered the officers to give their blood samples to enable the investigators compare their DNA with the blood on the exhibits in their custody.

“By a copy of this letter, we wish to relay our clients’ disgruntlement that they shall be vehemently objecting to being presented in any other laboratory other than as ordered by the court,” the lawyers stated in the letter.

Omari said that the officers have already appointed their pathologist who will be present during DNA collection as ordered by the court in order to safeguard the integrity of the process.

The court granted the investigators the orders on 10th November 2022, which shall lapse on 1st December 2022.

The matter will be mentioned on December 1, 2022 when the days granted will elapse.

According to investigators, they required 21 days to collect and analyze DNA samples of the suspects, a time during which they were to remain incarcerated.

Several police officers from the disbanded Special Service Unit (SSU) who have been arrested over claims various crimes have claimed their persecution is politically instigated.

While opposing an application to detain them for 30 days as the police conduct investigation, the officers further accused President William Ruto of interfering with the work of the National police Service, an independent office.

WARRANT OF ARREST ISSUED AGAINST THREE DIRECTORS BEHIND DEMOLITION OF WESTLANDS HOUSE.

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Niraj Batuk Shah,former Nairobi Governor Mike Sonko and Avani Niraj Shah.

BY SAM ALFAN.

A Nairobi Court has issued a warrant for the arrest of three directors of a company linked to demolition of a house in Westlands belonging to an elderly couple a few weeks ago.

Milimani Chief Magistrate Wendy Kagendo issued the order against Samuel Chepkwony, John Rotich and Joel Kiplangat after they failed to appear in court to answer to charges of robbery with violence.

Chepkwony, Rotich and Kiplangat are accused of violently robbing Niraj Batuk Shah and Avani Niraj Shah, on November 4, at Westlands area on School Lane, an offence they allegedly did jointly with others before court

According to the charge sheet, they robbed the couple of their electric appliances, jewelries and assorted household goods and items worth Sh18,097,000.

The charge sheet states that during the incident, they threatened to use actual violence on the said couple.

The duo are also accused of willfully and unlawfully damaging a house valued Sh20 million erected on the land parcel LR. No.1870/111/46; IR No.84817 the property of Batuk Lakhamshi Lalji Shah.

One of the directors of Lariak Properties limited has already been charged with robbery with violence and released on a cash bail of Sh2 million and a bond of Sh3 million.

Former Nairobi Governor Mike Sonko is offering a reward of Sh100,000 to anyone who will give information to the police that will lead to the arrest of the three runaway directors.

Sonko has been fighting land grabbing in Nairobi and standing by victims affected in the menace.

HAJI VOWS TO PROVE GRAFT CHARGES AGAINST OFFICIALS IMPLICATED IN THE MULTI-MILLION LAKE BASIN MALL IN KISUMU.

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Directors of Ederman Property Limited (EPL) Zeyun Yanga and Zhang Jing before Milimani Anti-corruption Court in Nairobi during the hearing of Lake Basin Development mall graft case./PHOTO BY S.A.N.

BY SAM ALFAN.

Former Lake Basin Development Authority (LBDA) Board chairman Onyango Oloo received bribe of Sh17 million from the contractor as an inducement to facilitate the allocation of funds for the project, a Nairobi court has heard.

Making opening remarks before the anti-corruption court Director of Public Prosecution Noordin Haji said the board chairman who doubled as a legal advisor to the contractor Ederman Properties Ltd (EPL), failed to declare his interest in the course of the procurement.

Through special prosecutor James Kihara, the DPP told anti-graft magistrate Kagure Nyutu that prosecution will also prove that agents of LBDA) misled the authority by submitting a final account of about Sh4.1 billion, which was over and above the actual value of works executed in the project.

According to the Prosecution, the contractor has so far received a payment of Sh4.5 billion which is way over the contract amount leading to loss of public funds.

“The defence may argue that that the construction of the mall as per LBDA’s specification is complete awaiting handover to LBDA.

“However, we will establish that the cost of completing the works was exorbitant hence LBDA failed to get value for money in the project,” Kihara told the anti-graft court.

He added, “Based on the evidence collected which will be presented in details, at the conclusion of the trial we will request this court to find the accused persons guilty of the offences as per the charge sheet.”

The prosecutor told the trial court that they intend to prove that the inception the idea of the construction of a shopping mall in lower Kanyakwar area in Kisumu county was conceptualised, advertised and intended to be purely a public private partnership project under the Public Private Partnership laws.

The successful bidder was required to provide financing for the entire project and recoup their investment through proceeds from the investment.

Kihara further told trial court the prosecution will prove that midflight the irregular process commenced by the accused persons the terms were charged by Ederman Properties Ltd purporting that they would provide 80 percent of the funds and LBDA was to provide 20 percent.

“The Prosecution will then establish that Ederman Properties Ltd never provided any amount for the project instead they entered into a financial arrangement with Co-operative Bank and borrowed to finance the project and irregularly charged the property of LBDA in disregard of the law,” Kihara told the Court.

The also intends to prove that the procurement as concluded under the Public Procurement and Disposal of Assets (PPDA) regime was irregular.

The requisite Public Private Partnership (PPP) Directorate were not sought and obtained by LBDA prior to commencing the procurement process.

The Prosecution further intends to prove that the accused persons, fully aware that the entire project was a Public Private Partnership (PPP) engaged in irregularities when they commenced the procurement under the PPDA.

According to Kihara, Haji intends to prove that they did not comply with the laws as set out.

He said the Erderman Properties ltd had not met all the mandatory requirements for the bid in the tender and the contract was signed by the Managing director of LBDA on 8th April 2013 before the lapse of the required fourteen days.

The court heard that Erderman Properties ltd submitted the tender document after the tender period had lapsed and Erderman Properties bribed officials to secure the award of the contract. There was over payment for the contract with 57% beyond the requisite percentage of 25 percent.

WITNESS TELLS COURT GOVERNMENT ALLOCATED 570 HECTARES FOR ARROR AND KIMWARER DAMS CONSTRUCTION.

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Former Treasury Cabinet Secretary Henry Rotich before Milimani Anti-Corruption at a past date./PHOTO BY S.A.N.

BY SAM ALFAN.

The government had allocated a total of 570 Hectares of land for the construction of Artor and Kimwaerer multi-purpose dams in Elgeyo-Marakwet county.

Gideon Rotich, a witness in the trial told chief magistrate Lawrence Mugambi that there was an issue with part of the land which is a government forest

The former employee of the National Environment Management Authority(NEMA) told the trial court that the environmental impact assessment was done by Elijah Ndiema and dispatched to the Ministry of Environment and Natural Resources, Kenya Forest Service (KFS), Ministry of Water and Kerio Valley Development Authority (KVDA)

However, KFS took issue with the construction of the dams citing destruction of the forest and halted the commencement of the project.

The witness further testified that KFS, did change it’s position in 2018 and gave provisional conditions to KVDA.

The condition included a reforestation programme at the surrounding area.

He said that KVDA was commissioned to ensure resettlement of the locals subsequent to compensation.

The court heard that KVDA was also to ensure compliance of both conditions set by KFS and NEMA.

The witness was giving evidence in the Sh63 billion graft case against former Finance Cabinet Secretary Henry Rotich and nine others.

The accused have engaged defence lawyers senior counsel Kioko Kilukumi, Phillip Nyachoti, Katwan Kigen among others.

The case will proceed for further hearing on December 5, 2022.